Party lands former UB instructor in legal trouble

Christmas parties are notorious for bringing out embarrassing behavior from some people.

But the office holiday party a group of dental school employees held at a Tonawanda tavern in 2010 had all the makings of a career-threatening debacle.

Bosses downed shots of liquor. A clerk was on her boss’s lap. The banter among some of the University at Buffalo employees was tinged with sexual innuendo. And then an associate dean tried to goad two women clerks into kissing each other.

One of the clerks has since filed a sexual harassment lawsuit in federal court.

And this holiday party has the rare distinction of being argued over in four levels of courts.

In the federal lawsuit, Lesley Shiner of Amherst accused Dr. Jude A. Fabiano of making unwelcome sexual advances toward her at the party and creating a hostile work environment. Fabiano was an associate dean of clinical affairs at the School of Dental Medicine at the time of the party, but he no longer works there. Shiner’s federal lawsuit also named the university as a defendant.

Fabiano was also prosecuted in Town of Tonawanda court on misdemeanor and violation charges. He successfully appealed the verdict in Erie County Court and was granted a new trial. And a State Supreme Court justice recently ordered the state to pay the former dean’s legal defense costs in the federal lawsuit.

An attorney for Fabiano said Fabiano has reached a settlement with Shiner in the federal case, but the agreement still must be drafted and then submitted to the court for approval. It is not clear who would pay the settlement.

Court filings, including partygoers’ statements and transcripts of interrogations, lay out what happened at the party.

Four partygoers said they watched and heard Fabiano encourage Shiner and the other clerk to kiss. Five others said they did not hear what he said but recalled seeing him put his arms around their necks and pull them together.

That was the first of four unpleasant encounters with Fabiano at the party that Shiner cited in her lawsuit.

“I went home and cried,” Shiner said in a statement to the Town of Tonawanda Police Department.

Several who attended the party and provided statements to the university acknowledged the unbecoming behavior.

“Everyone was drinking,” one clinical worker recalled. “I saw people sitting on people’s laps and touching each other. It was a weird party.”

“He was touchy. You could tell he had too many drinks,” the worker said of Fabiano.

A graduate student who attended said Shiner “seemed like she was joking around, but toward the end, she seemed like she’d had enough.”

Another clerk recalled Fabiano leaving his seat to approach Shiner and the other clerk.

“He was kind of on them, sort of sharing their seat, on their lap,” according to the clerk’s statement. “I saw Lesley’s face. She was laughing, but I knew it wasn’t from anything funny. Lesley was kind of trapped in a corner.”

One of Shiner’s bosses said he saw Shiner sit on a manager’s lap and “at some point after she got up from [his lap], she sat on Dr. Fabiano.”

Paying for defense

Another employee recalled laughter from Fabiano and the two clerks he grabbed.

“Everybody was laughing and having a good time. I know that there is some inappropriateness,” the employee said.

The State Attorney General’s Office has resisted paying for Fabiano’s defense in federal court. What happened at the tavern occurred outside the scope of his state university post, according to the state office.

Fabiano was “sued as an alleged intoxicated partygoer, based on improper statements, touching and harassment rather than as a professor or dean,” the Attorney General’s Office said in a court filing.

Fabiano maintained in his court papers that attending the party was part of his work. The university sponsored the party and the UB Foundation paid for it, he said.

Though the party was held off-campus with alcohol served, “this was the normal course for such parties,” Fabiano said in an affidavit.

“I saw it as part of my role at the dental school to socialize with staff members at these department parties,” Fabiano said. “The actions allegedly taken by me and others at the party, including the plaintiff, may have been silly, boorish or socially inappropriate at times, but they were part of the socializing which occurred at the party.”

Fabiano, 62, began working at the university in 1980 as a clinical instructor. He earned a promotion in 1985 and became full time in 1999.

“I categorically deny intending to discriminate against the plaintiff based on her sex,” he said in an affidavit. “I further categorically deny intending and/or creating a hostile work environment.”

State Supreme Court Justice John F. O’Donnell granted Fabiano’s petition to make the state cover his legal defense costs in the federal suit.

The State Attorney General’s Office has filed notice it will appeal O’Donnell’s order at the state Appellate Division.

Shiner, 64, of East Amherst, has worked as a clerk for the dental school’s instrument management services for 14 years.

In her federal lawsuit, she recounted hearing “blatantly inappropriate sexual remarks” at office holiday parties in 2008 and 2009.

Shiner attended the Dec. 21, 2010, party anyway, held between 11 a.m. and 3 p.m. at Neighbor’s Pub on Kenmore Avenue in Tonawanda.

She sat next to Fabiano and a clinical operations manager, both of whom were drinking alcohol and passing around a bottle of Crown Royal whiskey to the staff, according to her lawsuit.

She said Fabiano grabbed her and another clerk by their necks, in front of the others, calling them the “hottest” women at the party and urging “girl-on-girl” action, according to her lawsuit.

“He was holding my head tightly and slurring his words, telling us we were the hottest girls there,” she said in a police statement. “He kept saying he wanted the three of us to be together.”

The other clerk confirmed Shiner’s version.

“Dr. Fabiano came over and put his arms around us,” the clerk said in a statement to the university. “He made comments that we were both beautiful and that he wanted to see the two of us kiss.”

“He pushed our heads together. It did hurt a little,” according to her statement. “Dr. Fabiano did kiss my ear. I don’t know if it was tongue or slobber. My ear was wet.”

Shiner said Fabiano’s behavior “badly traumatized” her, according to her lawsuit.

Fabiano stuck his tongue in her ear and drooled, she said in her lawsuit.

After trying to get the two clerks to kiss, Fabiano got up from his seat and chased Shiner around the table while co-workers cheered him on, Shiner said in her lawsuit. When he caught up to her, he told her, “I want to meet you somewhere,” she said in her complaint.

Later at the party, he grabbed her and squeezed her ribs, she said.

Shiner said she mouthed the words “Please help me” to another partygoer, who came over and pulled her away from him, she said.

The clerk who is not suing said Fabiano apologized to her a couple of weeks after the party.

“He said he was completely embarrassed and did not realize that he did that,” the clerk said.

Fabiano’s behavior at the party made her uncomfortable, she said.

“It was completely out of character,” she said in her statement. “And I completely accepted Dr. Fabiano’s apology because I’ve never seen him behave like this before.”

Request for an apology

The day after the party, Shiner told a supervisor – her boss’ boss – that she wanted an apology. But the supervisor said it would not happen because Fabiano “did not remember anything,” according to Shiner’s police statement.

The supervisor denied to a university investigator that Shiner asked for an apology or that he told her she would not get one.

When questioned by the university, the supervisor said he talked to three women at the party who he thought might have been offended. Two of them laughed it off.

“She said she didn’t want anyone to know and that she didn’t want to embarrass Dr. Fabiano or his family.”

A couple of weeks after the party, however, Shiner told the supervisor she did not feel safe at work.

Then Shiner filed a complaint with the university’s employee relations office, according to her lawsuit.

In early March, about two months after the party, the university sent Fabiano a letter, advising him he was being suspended without pay because of the incidents at the holiday party. The dean of the dental school also informed him his current term appointment would end the following March, according to the lawsuit.

A second letter to Fabiano from the university’s employee relations office stated he engaged in “unwelcome and offensive behavior.”

Town court charges

Fabiano was charged in Town of Tonawanda Court with forcible touching and unlawful imprisonment, both misdemeanors, and harassment, a violation.

Town Justice Daniel T. Cavarello granted defense attorney Kevin Spitler’s motion to dismiss the unlawful imprisonment charge. Cavarello also acquitted Fabiano of forcible touching. The judge convicted him of harassment and sentenced him to a conditional discharge.

Fabiano appealed the conviction.

Attorney Lawrence J. Vilardo, who handled his appeal, argued that the town judge erred in admitting evidence about the “sexually charged atmosphere” at the dental school while excluding evidence of the Amherst woman’s bias and motive to lie.

At the trial, Spitler tried to elicit statements from two witnesses that the clerk was using the sexual harassment claim “as her ticket out of the job” she did not like.

“The testimony should not have been disallowed, since it essentially denied the defendant the right to present his case,” said Erie County Judge Michael L. D’Amico, who ordered a new trial in his April 4 decision.